MUHAMMAD IQBAL vs MUHAMMAD ARSHAD and another

CHAUDHARY MUHAMMAD TAJ, J. This appeal has been filed against the judgment passed by the Shariat Court on 30-1-2003 whereby an appeal filed against the judgment and order of the District Court of Criminal Jurisdiction, Mirpur was dismissed.

2. The facts are that a case under section 337-F(v) A.P.C. was registered against the respondent at Police Station, Mangla which was challaned before the Additional Tehsil Court of Criminal Jurisdiction, Mirpur and after its conclusion convicted the respondent and sentenced him the punishment of 'Daman' Rs.7,000. However, on an appeal filed on behalf of the respondent before the District Court of Criminal Jurisdiction, Mirpur the respondent was acquitted of the charge. The appellant herein preferred an appeal before the Shariat Court, which was dismissed. Hence, this appeal.

3. Mr. Muhammad Yunus Arvi, the learned counsel for the appellant, contended that the District Court of Criminal Jurisdiction and the Shariat Court have failed to appreciate the evidence on record. It was argued that both the Courts below acquitted the respondent on the ground that the witnesses did not support the prosecution version and were declared hostile but they failed to look into the matter that the appellant-complainant was an important witness whose statement was corroborated by the medical evidence and Investigating Officer. It was also argued that the aforesaid evidence was sufficient to record conviction on its basis. The learned counsel read out the prosecution evidence in support of his contentions.

4. Ch. Muhammad Afzal the learned counsel appearing for the respondent, while controverting the arguments addressed on behalf of the appellant, argued that the prosecution has failed to establish any case beyond reasonable doubt as, according to him, the complainant's version was not supported by any other prosecution witness. It was also maintained that all other prosecution witnesses except the complainant were declared hostile, therefore, the respondent was acquitted by the District Court of Criminal Jurisdiction and the order was affirmed by the Shariat Court. It was forcefully argued that this Court normally does not interfere in the orders passed by the Courts below particularly in acquittal appeals.

5. We have heard the learned counsel for the parties and also gone through the record. The respondent faced trial under section 337-F(v), A.P.C. and was convicted by the trial Court, However, on an appeal filed on behalf of the respondent the order was set aside and he was acquitted, A further, appeal before the Shariat Court on behalf of the appellant failed.

6. The learned Judge in the Shariat Court while concurring with the acquittal order passed by the District Court of Criminal Jurisdiction, Mirpur gave following observations in para 3 at page 2 of the judgment;-- "3.....I have heard the learned counsel for the parties and have perused the record as well. It was alleged by the complainant that on 23-3-1999 at 2045 hours, he was inflicted injury on his left arm by the accused. The report was lodged on 26-3-1999 with the delay of more than 67 hours for which there is no plausible explanation. The complainant has stated that delay was caused due to an attempt for compromise by the accused but it was not corroborated by any independent evidence. Secondly the prosecution witnesses Shahzad Haider, Qazi Amir Afzal and Abdur Rehman have stood hostile. They were cross-examined by the prosecution but nothing could be gained from them in favour of the prosecution. Since the ocular witnesses have not supported the prosecution case therefore, the rest of the evidence consisting upon Dr. Zaffar Yab and Muhammad Bashir, I.H.C., could not lend any support to the prosecution. In this view of the matter the prosecution has failed to prove its case beyond any reasonable doubt against the accused, therefore, the accused-respondent has rightly been acquitted by the learned District Court of Criminal Jurisdiction, Mirpur through the impugned order."

7. A perusal of the judgment shows that the learned Judge in the Shariat Court based his order on following two points:--

(i) That the F.I.R. was filed after a delay of 67 hours; and

(ii) That the prosecution witnesses Shahzad Haider, Qazi Amir Afzal and Abdur Rehman stood hostile. They in spite of being cross-examined the prosecution did not gain anything: Failure to support the prosecution case by the witnesses there was no requirement of taking into consideration the other evidence.

8. The prosecution in support of its case produced complainant, the appellant herein, and three prosecution witnesses Shahzad Haider, Qazi Amir Afzal and Abdur Rehman in addition to the medical evidence, Investigating Officer and recovery witness. Though this Court was not obliged to appraise the evidence at this stage of the case however, for the safer administration of justice the same was done. It is noticed that the appellant, the complainant in the case, appeared before the trial Court as a witness and was also cross-examined. His statement was corroborated by medical evidence. The recovery witness and thereafter the Investigating Officer also appeared as witnesses. All the above cited prosecution witnesses were duly cross-examined but we do not find any contraction or even discrepancy in their statements. It is also important to mention that both the Courts, the District Court of Criminal Jurisdiction and the Shariat Court, have failed to notice any such contradiction worth interference of the Appellate Courts. It would be relevant to state that the said Courts failed to take into consideration the aforesaid evidence and no reason was given to reject it. The learned Judge in the Shariat Court also held that the report was lodged after a considerable delay as, according to him, the same was made after 67 hours. We are afraid that the observation was against the record.The First Information Report shows that the occurrence took place at 2045 hours on 23-3- 1999 whereas the report was lodged on 24-3-1999 at 9-00 a.m., therefore, the learned Judge in the Shariat Court did not appreciate the facts in their true perspective.

9. We have also noticed that the learned Judge in the Shariat Court also made observation that the ocular evidence did not support the prosecution version as such the other evidence produced by the prosecution does not require to be considered. It may be mentioned that the observation runs counter to the law. All the evidence brought on record by the prosecution is required to be considered and it is not the quantity but the quality of the evidence, which has to be taken into consideration.

10.We have critically examined the statements of the complainant, doctor witness, recovery witness and Investigating Officer and have not found any contradiction or otherwise any fact leading towards the idea that the statements do not ring true though they had been subjected to exhaustive cross-examination. Therefore, we arrived at the conclusion that the judgment by the Shariat Court was not passed keeping in view the facts on record as such is not maintainable which is set aside by accepting the appeal.

The trial Court after taking all aspects legal as well as factual proceeded to convict the respondent and sentenced him to 'Daman' Rs.7, 000. Therefore, we also pass the order that he is convicted and sentenced as 'Daman' Rs.7,000 which shall be paid to the complainant by restoring the order passed by the trial Court. In case of non-payment of 'Daman' the convict-appellant shall undergo simple imprisonment in Mirpur Jail till realization of 'Daman' amounting to Rs.7,000.